GPS tracking a privacy concern

When Springfield-based attorney Mark Wykoff’s client was pulled over with methamphetamine in his vehicle, he probably didn’t know that police had attached a GPS tracking device to his car.

But they had. At the time he was pulled over in December 2011, the U.S. Supreme Court’s unanimous decision and opinion made in January 2012, United States v. Jones, had not yet been handed down. The decision found that under the Fourth Amendment, which prohibits unreasonable searches and seizures, police must have a search warrant before they may attach a tracking device to a vehicle.

State Sen. Daniel Biss, D-Evanston, proposed the Freedom from Location Surveillance Act in January, which reiterates the Supreme Court decision as Illinois law. It also proposes that police must have a warrant before tracking individuals via any electronic devices, such as a cell phone or iPad.

“It’s really any electronic device that can show where you are,” Biss said.

Although the Supreme Court decision was unanimous, the justices’ reasons behind the decision were divided. Some argued that physically attaching a device to an individual’s personal property is a violation of the Fourth Amendment’s search and seizure protection, while others interpreted the opinion to further include monitoring of individuals as a privacy violation.

The gray area between the Fourth Amendment and tracking via technology is what led Biss to introduce the bill.

“I hope that eventually we will have a straightforward, unanimous view that is covered by the Fourth Amendment, but that’s not totally clear at this point and certainly law enforcement entities were not of the view that they were restricted in this way,” he said.

While the Supreme Court has ruled that police cannot attach a GPS to a vehicle, Biss said police agencies can vary on their tracking policies. While some departments might already request a warrant before tracking, he said other police departments may not obtain a warrant when it comes to tracking individuals via electronic devices.

“I thought it was important to have some uniformity, some basic ground level of privacy protection for people,” he said.

The bill has seen little opposition and passed unanimously in the Illinois Senate’s criminal law committee. It is waiting for a vote in the Senate. It includes exceptions to certain occasions when police would not be required to have a warrant, such as in the case of a kidnapping or when a person is at risk for bodily harm.

If Biss’s legislation had been law at the time Wykoff’s client had been pulled over, none of the evidence gathered from the traffic stop when he was tracked would have been relevant in court, including the methamphetamine.

Wykoff said this legislation is something defense attorneys, prosecutors and judges mostly agree is constitutional, which he said can be rare.

The question remains: How can people know officers have not been tracking them?

“We only find out about these things when people get caught, basically,” Wykoff said.

While police may have to obtain search warrants before tracking individuals, that doesn’t make tracking illegal for private citizens. The police may not be able to track you, but your neighbor can.

“[People] can do it privately, just the government can’t do it without first asking permission of the court,” Wykoff said.

Last year, Biss sponsored legislation that prohibits police from gathering information by using drones without having a search warrant. Gov. Pat Quinn signed the legislation into law in August. At the time, Biss said the question arose whether the use of drones should be regulated in the private sector too. Where to draw the line on private use of surveillance such as electronic devices and drones, he said, he’s still unsure about.

“I completely agree it’s a question that needs to be answered,” he said.